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Spear v. Monroe

WILLIAM C. SPEAR Et Al., Petitioners, v. CHARLES MONROE, as Judge of the Superior Court of Los Angeles County Et Al., Respondents

Spear v. Monroe, 186 P. 149 (Cal. 1919)
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Court
California Supreme Court · State Highest Courts
Decided
December 22, 1919
Docket
No. L. A. No. 6381.
Judges
THE COURT.
Citations
186 P. 149181 Cal. 7281919 Cal. LEXIS 418
Disposition
Denied.
Cited by 8
Headnotes
[1] Appeal—Alternative Method—Filing of Notice for Preparation of Record—Jurisdictional Prerequisite.—The failure of a party desiring to appeal under the alternative method to file the notice requesting preparation of the record within the time specified in section 953a of the Code of Civil Procedure, goes to the jurisdiction in so far as the preparation of the record is concerned, at least in the absence of an order of the trial court relieving the .party from his default in the matter of filing such notice. [2] Id.—Filing of Notice of Appeal Immaterial.—The fact that a notice of appeal has been filed is altogether immaterial in so far as the effect of a failure to file the notice for the preparation of the record is concerned. [3] Id.—Order Extending Time for Preparation of Record Immaterial.—An order of the judge, made ex parte, granting further time for the preparation of the record on account of the inability of the reporter to finish the same within the time specified in the code section, is immaterial, since such order is not one relieving the party from his default in the matter of the filing of the notice for the preparation of the record. [4] Id.—Failure to File Notice for Preparation of Record—Proper Refusal to Certify Transcript.—Where a notice requesting preparation of the record was not filed within ten days after notice of entry of judgment, the court was justified in refusing to settle and certify the transcript, as was also the clerk in refusing to forward any record prepared under section 953a of the Code of Civil Procedure.
Summary
APPLICATION for a Writ of Mandamus to compel the Superior Court of Los Angeles County to settle and certify a proposed record on appeal. The facts are stated in the opinion of the court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

THE COURT.

Proceeding in mandate looking to compelling the judge of the trial court to settle and certify a proposed record on appeal under section 953a of the Code *729 of Civil Procedure, and to requiring the clerk to certify and forward record of judgment-roll, etc., prepared under said section. The petition shows that the notice requesting preparation of said record required by the section was not filed within ten days after notice of entry of the judgment.

[1]

The failure to file such a notice within the time specified in the section goes to the jurisdiction in so far as the preparation of the record is concerned, at least in the absence of an order of the trial court relieving the party from his default in the matter of filing such notice. (See Estate of Keating, 158 Cal. 109 , [ 110 Pac. 109 ];

Fiske v. Gosbey, 168 Cal. 334 , [ 143 Pac. 611 ].)

[2]

The fact that a notice of appeal has been filed is altogether immaterial in so far as the effect of a failure to file this notice for the preparation of a record is concerned.

The order of the judge, made ex parte, granting further time for the preparation of the record on account of the inability of the reporter to finish the same within the time specified in the section, is likewise immaterial here.

[3]

It was not an order relieving the party from his default in the matter of filing the notice, and was made by the judge in ignorance of the fact that no notice had been filed in time.

[4]

The court was justified in vacating the same and in refusing to settle and certify the transcript, as was also the clerk in refusing to forward any record prepared under that section.

The application for a writ of mandate is denied.

All the Justices concurred, except Melvin, J., who was absent.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 8 cases

View all citing references →
1927: 21928: 31929: 11933: 11936: 119272026peak 1928 · 3

Relies on it most ⓘ

  1. Miller v. Price265 P. 931 (Cal. 1928)
  2. Soda v. Marriott20 P.2d 758 (Cal. Ct. App. 1933)
  3. Sterling Corporation v. Superior Court278 P. 859 (Cal. 1929)
  4. Lewis v. Fowler252 P. 786 (Cal. Ct. App. 1927)
  5. Security-First National Bank v. Bixby63 P.2d 875 (Cal. Ct. App. 1936)
  6. Hume v. Lindholm258 P. 1003 (Cal. Ct. App. 1927)

Most recent

  1. Security-First National Bank v. Bixby63 P.2d 875 (Cal. Ct. App. 1936)
  2. Soda v. Marriott20 P.2d 758 (Cal. Ct. App. 1933)
  3. Sterling Corporation v. Superior Court278 P. 859 (Cal. 1929)
  4. Miller v. Price265 P. 931 (Cal. 1928)
  5. Rosello-Bras v. American Railroad37 P.R. 566 (1928)
  6. Roselló Bras v. American Railroad37 P.R. Dec. 607 (1928)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Hamaker v. Keating, 110 P. 109 (Cal. 1910) 30
Fiske v. Gosbey, 143 P. 611 (Cal. 1914) 14

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